Citation Nr: 0217466
Decision Date: 12/04/02 Archive Date: 12/12/02
DOCKET NO. 01-03 608 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office & Insurance
Center in St. Paul, Minnesota
THE ISSUE
Whether the appellant should be recognized as the veteran's
surviving spouse.
REPRESENTATION
Appellant represented by: Minnesota Department of
Veterans Affairs
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Mark J. Swiatek, Counsel
INTRODUCTION
The veteran had active military service from June 1949 to
June 1950, and from September 1950 to April 1952. The
veteran denied in September 2000. The appellant claims to
be his surviving spouse.
This matter is on appeal to the Board of Veterans' Appeals
(Board or BVA) from a February 2001 determination of the
Department of Veterans Affairs (VA) Regional Office and
Insurance Center (RO&IC) in St. Paul, Minnesota. The RO&IC
denied the appellant's claim for payment of death benefits
on the basis of her not having been recognized as the
veteran's surviving spouse.
In March 2001 the appellant provided oral testimony before a
Decision Review Officer at the RO&IC, and in August 2002
before the undersigned Member of the Board. Transcripts of
her testimony have been associated with the claims file.
FINDINGS OF FACT
1. [redacted] (the appellant) and the veteran were married in
July 1978 and their marriage was terminated by divorce in
April 1997; there is no record that she filed a timely
appeal of that decree of dissolution on any basis.
2. The veteran's marriage to [redacted] in March 1999 was
dissolved in January 2000.
3. The veteran died in September 2000 and he was not
married at the time of his death.
CONCLUSION OF LAW
The criteria for recognition of the appellant as the
veteran's surviving spouse have not been met as a matter of
law. 38 U.S.C.A. §§ 101, 5107 (West 1991 & Supp. 2002); 38
C.F.R. §§ 3.1, 3.50, 3.206 and 3.102, 3,159(2002); Sabonis
v. Brown, 6 Vet. App. 426, 430 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual background
The record shows that in 1981 the veteran reported that he
and the appellant had married in July 1978. In 1984, VA
found him entitled to a permanent and total disability
rating for pension purposes, but the appellant's income
precluded any benefit entitlement. VA in 1985 advised him
to reapply in view of the change in her income status that
he had reported. He noted in a VA benefit application he
had submitted in 1993 that he remained married to the
appellant.
A VA psychiatry examination report in 1995 noted the veteran
was married to the same spouse from 1978, although he was
separated from his current wife. Another contemporaneous
medical report noted he and his spouse did not get along
well. The VA benefit eligibility verification report he
submitted in 1998 reported he was not married and that the
marriage had been terminated in April 1997. Subsequent
medical reports note in 1998 that he appeared with his
girlfriend and early in 1999 that he lived with his actively
drinking girl friend.
The veteran noted in a VA benefit eligibility verification
report early in 1999 that he would marry [redacted] in March
1999. VA advised him that his pension benefit would be
discontinued effective in December 1999 since he did not
provide requested information regarding his reported
marriage to [redacted]. He provided copies of documents that
showed this marriage had occurred in March 1999, that they
had separated in June 1999, and that the marriage had been
dissolved in January 1990. Early in 2000 he submitted a
declaration of dependents that reported his marriage to the
appellant had terminated in February 1999. A VA eligibility
verification report noted he was not married since January
2000.
The record shows that the veteran died in September 2000 and
that the death certificate listed his marital status as
divorced. His daughter filed a claim for VA burial
benefits.
The VA in October 2000 received the appellant's application
for VA death benefits. In essence, it was her feeling that
she had not been properly served with the final divorce
decree. She supplemented the record with numerous documents
that substantiated her marriage to the veteran as previously
reported. VA contact confirmed the date of the divorce in
April 1997, and obtained a copy of the judgment dated in
April 1997. This showed that the appellant (respondent in
the proceeding) was served by publication and in person with
various pertinent documents. It was noted that petitioner's
(the veteran) attorney would make service of the judgment by
mail. One of the findings was that there had been an
irretrievable breakdown of the marriage relationship.
Among the numerous documents the appellant submitted with
her appeal was a record of contact with a VA employee
regarding her claim wherein she argued, in essence, the
veteran's death was a homicide and that her divorce from the
veteran was invalid based on inadequate notice.
She supplemented the record with various correspondences
that in essence mentioned the two bases of her claim and
discussed other matters that were the subject of other legal
proceedings. At a RO&IC hearing early in 2001 she
elaborated on her contentions regarding the circumstances of
the veteran's death, her recollection of events surrounding
the divorce proceeding (3, 4, 8-9, 12-13, 15) and, for the
majority of the hearing, essentially a recitation of other
matters that she indicated were being addressed in other
legal proceedings (Transcript inter alia 4, 24, 7-8, 10, 15-
16, 24-25). She also asserted that she was not at fault in
the separation and that she had not remarried (T 17).
The representative clarified the argument as grounded in a
claim of invalid or illegal divorce due to irregularities of
the proceeding, the veteran's incompetency at the time of
filing, and his other health problems noted as contributing
to his death.
At the Board hearing, the appellant essentially continued
the line of argument in her previous testimony, arguing that
the divorce was not legal or proper as she was served in the
hospital (T 2-3, 24). She asserted the veteran's
incompetency based upon the commitment for chemical
dependency prior to the divorce (T inter alia 4, 7, 9, 11-
12, 20-21 and 26).
Documents added to the record as a result of the Board
hearing were described as evidence of the appellant's claim
that the veteran was not competent when he filed for
divorce. According to a June 1995 VA medical record the
veteran had good understanding of the explanation of certain
tests and the medical aspects of alcohol that were explained
to him. A consultation form noted he appeared to meet the
current criteria for post-traumatic stress disorder and that
it was recommended that he follow up with the treatment
program upon discharge.
There was a record of a State agency-initiated proceeding
for treatment of his chemical dependence late in 1995 that
recommended the least restrictive alternative of community
based treatment. According to the record, his preferences
and willingness to participate were factors considered. The
appellant also submitted correspondence that contained
various enumerated "Counts" and the issue framed as the
veteran's competency at the time of commitment until his
"murder" in September 2000.
Criteria
Marriage means a marriage valid under the law of the place
where the parties resided at the time of marriage, or the
law of the place where the parties resided when the right to
benefits accrued. 38 C.F.R. § 3.1(j).
(a) Spouse. ``Spouse'' means a person of the opposite sex
whose marriage to the veteran meets the requirements of Sec.
3.1(j).
(b) Surviving spouse. Except as provided in Sec. 3.52,
``surviving spouse'' means a person of the opposite sex
whose marriage to the veteran meets the requirements of Sec.
3.1(j) and who was the spouse of the veteran at the time of
the veteran's death and: (1) Who lived with the veteran
continuously from the date of marriage to the date of the
veteran's death except where there was a separation which
was due to the misconduct of, or procured by, the veteran
without the fault of the spouse; and (2) Except as provided
in Sec. 3.55, has not remarried or has not since the death
of the veteran and after September 19, 1962, lived with
another person of the opposite sex and held himself or
herself out openly to the public to be the spouse of such
other person. 38 C.F.R. § 3.50.
The validity of a divorce decree regular on its face, will
be questioned by the Department of Veterans Affairs only
when such validity is put in issue by a party thereto or a
person whose interest in a claim for Department of Veterans
Affairs benefits would be affected thereby.
In cases where recognition of the decree is thus brought
into question: (a) Where the issue is whether the veteran is
single or married (dissolution of a subsisting marriage),
there must be a bona fide domicile in addition to the
standards of the granting jurisdiction respecting validity
of divorce; (b) Where the issue is the validity of marriage
to a veteran following a divorce, the matter of recognition
of the divorce by the Department of Veterans Affairs
(including any question of bona
fide domicile) will be determined according to the laws of
the jurisdictions specified in Sec. 3.1(j). (c) Where a
foreign divorce has been granted the residents of a State
whose laws consider such decrees to be valid, it will
thereafter be considered as valid under the laws of the
jurisdictions specified in Sec. 3.1(j) in the absence of a
determination to the contrary by a court of last resort in
those jurisdictions. 38 C.F.R. § 3.206.
Marriage, so far as its validity in law is concerned, is a
civil contract between a man and a woman, to which the
consent of the parties, capable in law of contracting, is
essential. Lawful marriage may be contracted only between
persons of the opposite sex and only when a license has been
obtained as provided by law and when the marriage is
contracted in the presence of two witnesses and solemnized
by one authorized, or whom one or both of the parties in
good faith believe to be authorized, so to do. Marriages
subsequent to April 26, 1941, not so contracted shall be
null and void. Minnesota Statutes (2002), Chapter 517.01.
Wherever the word "divorce" is used in the statutes, it has
the same meaning as "dissolution" or "dissolution of
marriage." Minnesota Statutes (2002), Chapter 518.002.
A decree of dissolution of marriage or of legal separation
is final when entered, subject to the right of appeal. When
entered, the findings of fact and conclusions of law may
constitute the judgment and decree. An appeal from the
decree of dissolution that does not challenge the finding
that the marriage is irretrievably broken does not delay the
finality of that provision of the decree which dissolves the
marriage beyond the time for appealing from that provision.
A party may remarry before the time for appeal has run if it
is not contested that the marriage is irretrievably broken
or if a stipulation that the marriage is irretrievably
broken is incorporated in the decree of dissolution.
On motion and upon terms as are just, the court may relieve
a party from a judgment and decree, order, or proceeding
under this chapter, except for provisions dissolving the
bonds of marriage, annulling the marriage, or directing that
the parties are legally separated, and may order a new trial
or grant other relief as may be just for the following
reasons: (1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence which by due
diligence could not have been discovered in time to move for
a new trial under the rules of civil procedure, rule 59.03;
(3) fraud, whether denominated intrinsic or extrinsic,
misrepresentation, or other misconduct of an adverse party;
(4) the judgment and decree or order is void; or (5) the
judgment has been satisfied, released, or discharged, or a
prior judgment and decree or order upon which it is based
has been reversed or otherwise vacated, or it is no longer
equitable that the judgment and decree or order should have
prospective application.
The motion must be made within a reasonable time, and for a
reason under clause (1), (2), or (3), not more than one year
after the judgment and decree, order, or proceeding was
entered or taken. A motion under this subdivision does not
affect the finality of a judgment and decree or order or
suspend its operation.
This subdivision does not limit the power of a court to
entertain an independent action to relieve a party from a
judgment and decree, order, or proceeding or to grant relief
to a party not actually personally notified as provided in
the rules of civil procedure, or to set aside a judgment for
fraud upon the court. Minnesota Statutes (2002), Chapter
518.145.
Service; alternate service; publication. (a) Unless a
proceeding is brought by both parties, copies of the summons
and petition shall be served on the respondent personally.
(b) When service is made out of this state and within the
United States, it may be proved by the affidavit of the
person making the same. When service is made without the
United States it may be proved by the affidavit of the
person making the same, taken before and certified by any
United States minister, charge d'affaires, commissioner,
consul or commercial agent, or other consular or diplomatic
officer of the United States appointed to reside in such
country, including all deputies or other representatives of
such officer authorized to perform their duties; or before
an officer authorized to administer an oath with the
certificate of an officer of a court of record of the
country wherein such affidavit is taken as to the identity
and authority of the officer taking the same. (c) If
personal service cannot be made, the court may order service
of the summons by alternate means. The application for
alternate service must include the last known location of
the respondent; the petitioner's most recent contacts with
the respondent; the last known location of the respondent's
employment; the names and locations of the respondent's
parents, siblings, children, and other close relatives; the
names and locations of other persons who are likely to know
the respondent's whereabouts; and a description of efforts
to locate those persons. The court shall consider the length
of time the respondent's location has been unknown, the
likelihood that the respondent's location will become known,
the nature of the relief sought, and the nature of efforts
made to locate the respondent.
The court shall order service by first class mail,
forwarding address requested, to any addresses where there
is a reasonable possibility that mail or information will be
forwarded or communicated to the respondent or, if no
address so qualifies, then to the respondent's last known
address. If the petitioner seeks disposition of real estate
located within the state of Minnesota, the court shall order
that the summons, which shall contain the legal description
of the real estate, be published in the county where the
real estate is located. The court may also order
publication, within or without the state, but only if it
might reasonably succeed in notifying the respondent of the
proceeding. Also, the court may require the petitioner to
make efforts to locate the respondent by telephone calls to
appropriate persons. Service shall be deemed complete 21
days after mailing or 21 days after court-ordered
publication. Minnesota Statutes (2002), Chapter 518.11.
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3.
The Secretary shall consider all information and lay and
medical evidence of record in a case before the Secretary
with respect to benefits under laws administered by the
Secretary. When there is an approximate balance of positive
and negative evidence regarding any issue material to the
determination of a matter, the Secretary shall give the
benefit of the doubt to the claimant. 38 U.S.C.A. § 5107
(West Supp. 2002).
Analysis
Duty to Assist
There have been changes in the law during the pendency of
this appeal. On November 9, 2000, the President signed into
law the Veterans Claims Assistance Act of 2000 (VCAA) now
codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107
(West Supp. 2002). The Board has not overlooked the
recently codified VA regulations that implement the VCAA.
See 38 C.F.R. §§ 3.102, 3.156(a), 3,159 and 3.326(a) (2002).
However, these provisions do not provide any rights other
than those provided by the VCAA.
Among other things, this law redefines the obligations of VA
with respect to the duty to assist and supersedes the
decision of the United States Court of Appeals for Veterans
Claims (CAVC) in Morton v. West, 12 Vet. App. 477 (1999),
withdrawn sub nom. Morton v. Gober, 14 Vet. App. 174 (2000)
(per curiam order).
The Board observes that the appellant has not indicated at
any stage in this appeal that pertinent evidence regarding
this matter was brought to the attention of the RO&IC or the
Board, but not requested or accounted for. The matter at
hand is a purely legal question in the nature of basic
entitlement that the VCAA would not affect. See for example
Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The
appellant has not indicated the likely existence of any
evidence that has not already been obtained or provided that
would be crucial in the claim from the standpoint of
substantiating current compliance with the applicable law or
VA regulations for the benefit she seeks. McKnight v.
Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Gober, 126
F.3d 1464 (Fed. Cir. 1997). Specifically she has not
referred to any action at law regarding the propriety of the
divorce decree she has taken in a court of competent
jurisdiction.
Recognition as the Veteran's Surviving Spouse
The court document the veteran submitted to VA early in 2000
found as fact that [redacted] was the victim of spousal abuse
during the marriage that followed his divorce from the
appellant. The divorce decree however showed that the
appellant was served according to the applicable law. It
was noted that petitioner's (the veteran) attorney would
make service of the judgment by mail and there is no support
in the record that the administrative procedures were not
followed to achieve proper service of the judgment.
The term "surviving spouse" means a person of the opposite
sex who was the spouse of a veteran at the time of the
veteran's death, and who lived with the veteran continuously
from the date of marriage to the date of the veteran's death
(except where there was a separation which was due to the
misconduct of, or procured by, the veteran without the fault
of the spouse). 38 U.S.C. § 101(3) (emphasis added). See 38
C.F.R. §§ 3.1(j), 3.205(a).
In the present case, there is evidence that the appellant
had been married to the veteran. However, the record also
contains a divorce decree issued effective April 21, 1997.
There is also evidence of the veteran's subsequent marriage
to another person and the termination of that relationship
prior to his death. The Board finds that the record
established as a matter of law that at the time of the
veteran's death in September 2000, the appellant was not the
veteran's spouse for purposes of VA benefits.
The appellant claims that she should still be eligible for
death benefits because she believes she did not have proper
notice of the divorce, and she seems to question the
veteran's competency at the time of the proceeding.
Initially, the Board should point out that any exception to
the cohabitation requirement would only apply where the
parties separate, but are still married.
As to her arguments, construed broadly, that the veteran was
mentally incompetent to enter into the divorce decree, and
that she did not have proper notice, the Board has no
jurisdiction to question the validity of the divorce decree
issued by the State of Minnesota. See Ankenbrandt v.
Richards, 504 U.S. 689, 689, 119 L. Ed. 2d 468, 112 S. Ct.
2206 (1992) (confirming that the domestic relations
exception to federal jurisdiction excludes the issuance or
modification of a divorce, alimony or child custody decree);
Sosna v. Iowa, 419 U.S. 393, 404, 42 L. Ed. 2d 532, 95 S.
Ct. 553 (1975) (explaining that the regulation of domestic
relations is "an area that has long been regarded as
virtually exclusive province of the States"); Barber v.
Barber, 62 U.S. (How. 21) 582, 16 L. Ed. 226 (1859) (holding
that domestic relations were an exception to federal court
jurisdiction).
Regarding the validity of a divorce decree that is regular
on its face, 38 C.F.R. § 3.206(a) provides that where the
issue is whether the veteran is single or married
(dissolution of a subsisting marriage), there must be a bona
fide domicile in addition to the standards of the granting
jurisdiction respecting validity of divorce. These
provisions appear inapplicable to this case in light of the
facts as to the divorce from [redacted] and the later
relationship with [redacted]. The Board has noted the
applicable state law that provides a right to appeal the
divorce determination. However, that right was apparently
not unlimited and the appellant has offered no evidence that
she in fact did appeal the determination in the proper
manner. The service requirements were noted in the decree
and she apparently was served by publication and in person
which are permissible service options according to the
applicable statute. She has offered no evidence that she
has challenged the decree in the proper legal forum.
Thus, the Board finds that overwhelming evidence shows that
the appellant was properly divorced from the veteran for
several years, that she did not enter an appeal as provided
under applicable law, and that she alleges matters of
competency which the Board is unable to review in light of
the clear legal precedent. The Board notes there was no
legal impediment to the veteran's marriage to [redacted]
mentioned in the findings made with regard to the
termination of that marital relationship. This would seem
to be problematic for the appellant who argues the
preexisting divorce decree was not valid. Therefore, the
Board concludes there is no need to specifically cite to
numerous divorce or appeal provisions from Minnesota
statutes or rules of procedure. In the face of overwhelming
evidence in support of the result in a particular case, it
is unnecessary to impose additional burdens on the Board or
VA with no benefit flowing to the appellant. See Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991).
Having found that the appellant has offered no basis for the
Board to review the VA finding that she is not the surviving
spouse based upon the divorce decree regular on its face,
she is not entitled to benefits she seeks as a matter of
law. The determination as to her eligibility is not
favorable and the claim must be regarded as legally
insufficient since the requisite elements for eligibility to
qualify for this benefit are not met. Sabonis v. Brown, 6
Vet. App. 426, 430 (1994).
ORDER
As the appellant may not be recognized as the veteran's
surviving spouse, the appeal is denied.
RONALD R. BOSCH
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.